Catching up on things. Lots of tweets, but no blog posts. Below are more twitter posts since my last post of July 17 with 50 BK cases and commentary and 6 other items of general interest. RSS Feeds are also available. All my twitter posts are here. With hurricane season upon us, I thought some would like the inset infographic, taken from an 8/2/11 post entitled Rock me like a hurricane. Bankruptcy Cases and Topics 10th BAP bars review of order under "law of the case" doctrine bec. 3 narrow grounds for departing from rule are absent. http://t.co/7knf9h6 D-TX: Dbtr's deposit to secure performance obligs didnt create an express, resulting or constr. trust favoring creditor. http://t.co/Tqc5iIu D-MA: Fee-only Ch 13 plans designed mainly to pay the filing atty's fees over time per se violates the good faith reqt. http://t.co/pPU96Wi 11th-1st Impression: Order affirming BK Ct merits decision was final & appealable despite undecided issue of atty fees. t.co/RF9Qqjw 9th: Estate prop. revests in Ch 13 dbtr at confirm., so postpet. taxes can attach to revested prop. & not violate stay. t.co/KCl63eO B-NEB: Restrictive covenants requiring ch 11 developer to build certain prefab units in exchange for $1M not executory. t.co/P2hQYbA B-MN: Snapshot in Polaroid preference case (that incl. trustee counterclaim) of constit convolutions caused by Marshall. t.co/BEt2N52 ED-WI reviews law in 7th Circuit on the requirement that a purchaser act in "good faith" in the context of §363 sales. t.co/drmlnyn ED-WI: Issue of good faith can be considered at the motion to dismiss stage in an unstayed appeal of a §363 asset sale. t.co/drmlnyn B-MO: Stay extended to all Def. in B/D arbitration actions on "control person" issue only based on identity of interest. t.co/D4pfYWI D-LA: §362's automatic stay doesn't apply to actions against a nondebtor corporation that is wholly owned by the debtor. t.co/pFFjPPW 7th Cir. again defers foraging into the debate whether actions filed in violation of the stay are void or just voidable. t.co/7ixmIx8 7th reminds that §108(c) & IL law provide basis to proceed vs. debtor on claims that become time-barred during the stay. t.co/7ixmIx8 7th invokes judicial estoppel beyond normal uses to stop gamesmanship in pursuing contradictory positions in 7th & D-Ct. t.co/7ixmIx8 7th reviews certifying for appeal as a final jdgmt a dismissal of claims vs. nondbtr despite pending stay vs. BK co-def. t.co/7ixmIx8 B-NH: In pari delicto defense doesn't apply to avoidance actions brought under Chapter 5 of the Bankruptcy Code. t.co/0PqhsW4 B-DE wont dismiss cplt to recharacterize debt where contribs. were pro rata / subord unsec. & int. deferred / below-mkt. t.co/alSCfte B-FL: Atty depositing postdated retainer checks postpet. violates stay & creates impermissible adverse rel. w/client. t.co/fcc78sD D-IN: No abuse of discr. in sua sponte dismissal of adv. cplt w/out much notice or opport. to cure failure to prosecute. t.co/xtAB7gD 8th BAP: Trustee didn't meet burden that benefit to estate from property sale outweighed harm to co-owner under §363(h). t.co/gLPYNSz 7th excludes municipal utility charges from stay exceptions of §§362(b)(3),(9),(18) bec. not a tax or spec. assessment. t.co/Kkc8SVq B-IL: Non-waiver clause in LLC operating agreement limits the risk that the waiver doctrine can be applied against you. t.co/UUxZWZM D-OH: Using "10b size category in assess[ing] small stock premium for [valuation] calculations" beats Daubert challenge. http://t.co/AmIXSlf BK-TX reviews tension between amending pleading under FRCP 9(b) & FRBP 4004(a)'s mandatory deadline for nondisch. cplts. t.co/52bTQ66 6th BAP remands on BK order to disgorg prepet. retainer in converted ch 11 case to determine if valid atty lien existed. t.co/Is6ypWx BK-NC: CIT properly exercised recoupment right postpetition to min. commission fee payable under factoring agreement. t.co/AuZbPvV B-NH: Ttee's fraudulent transfer cplt survives dismissal w/out identifying actual creditor providing § 544(b) standing. t.co/EEgsgfd D-CA wont preclude appeal of trustee's settlement transferring litigation claims to 3d party under eq mootness doctrine. t.co/JEKwv69 D-CA won't apply §363(m) mootness to an order approving a settlement even if the order accomplishes nearly same result. t.co/JEKwv69 B-DE: Faltering co. defense to WARN Act inapplic. bec notices didnt provide suff. facts justifying lesser notice period. t.co/KVJFvnE B-DE concludes in class action BK adversary that grandparent mgmt co. is co-liable w/BK debtor for WARN act violations. t.co/KVJFvnE B-DE disagrees with per se rule that grandparent corps can't share common ownership of distant indirect subsidiaries. t.co/KVJFvnE B-SDNY notes its disapproval of plan releases by BK estates when the requisite supporting due diligence hadnt been done. t.co/DBE3x51 B-SDNY reflects on its disapproval of releases by 3d parties when they don't satisfy 2d Cir.'s Metromedia requirements. t.co/DBE3x51 B-SDNY, post-Marshall, requires change to term of confirmed plan requiring claims ag. ex-D&Os be brought in BK Ct only. t.co/DBE3x51 B-SDNY notes as an aside that it has sustained objections to broad plan releases for former D&Os in 4 identified areas. t.co/DBE3x51 B-SC interprets when "cause" exists under §363(k) to grant or deny a disputed lender the right to credit bid in a sale. http://t.co/zXNGkks B-CA: Ch. 20 Debtors still can't "permanently" strip off unsecured junior lien w/out either a discharge payment in full. t.co/OMMXo7G B-OH: US Trustee can take 2004 exam re Wells Fargo's standing to file proof of claim in ch 13 case & re claim's validity. t.co/ImXj2Rl D-MI reviews how interrelated creditors/claims can be before they are ineligible to serve as separate §303 petitioners. t.co/C6Ccmf6 B-SDNY thoroughly reviews competing interests of FRCP 15(a) & 16(b): freely amend pleadings or hold to scheduling order. t.co/UQIWdET B-SDNY:Waiting 4 yrs to amend affirm def to add §546(e) safe harbor, thinking it can be raised at leisure, is offensive t.co/UQIWdET B-TN: Ponzi scheme fraudulent tsf. case law is clear: investors may keep their returned principal, but not any profits. http://t.co/9ETm6Xd CWT's @douglasmintz @pfcad (PFriedman) & M.Ellenberg, quoting Anna Nicole, ask re Stern v. Marshall: "How Big Is It?" t.co/2kx1RJq B-DE: Recharacterization cplt .survives Twiqbal; 7 factors favor rechar. as equity, 3 favor debt, and 2 favor neither. t.co/Xuh4Udc D-FL excludes testimony per Daubert of accounting expert who tries to apply AICPA auditing stds. to non-auditing work. t.co/aoIrzS1 D-MN: Circuits are split re right to jury trial on liability/dgs once debt found nondischargeable, but waiver found here. t.co/mcTuKpP Good review of brief seeking JD-based dismissal of pref cplt based on reading of Marshall/Langenkamp/Granfinanciera. bit.ly/qk5zzu B-MT approves 9019 stip for 1st Lender's creative financing of ch 7 Ttee's continuing hotel ops. to preserve sale value. t.co/OuRtVMO B-AL denies plan provision giving plan cmmttee right to bring claim, financed by estate, that plan trustee won't pursue. t.co/Z9MAf0x Topics of General Interest Jon Stewart Criticizes Obama for 'Weak' Debt Talks Performance. http://gawker.com/5821453/ Extremely sad news re ex-K&E BK partner (and my first boss/mentor). Our heartfelt prayers to Ted & his family. t.co/4iACSMb And here I thought I overate yesterday! Guess it's all relative. t.co/lFNtSEu A Visual Representation Of MurdochGate's Toxic Spiderweb. http://is.gd/UB4UNN The Head Of The World's Biggest Hedge Fund Sees "Economic Collapse" Due To Money Printing By Early 2013 http://is.gd/WXKk5T 22000 digitized photos (1898-46) of Jerusalem & ME donated to Lib. of Cong by members of the Amer. Colony in Jerusalem. t.co/WzOJ04e Thanks for reading! © Steve Jakubowski 2011
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